*1 judg- reverse court’s I would the trial (A) fees, order attorney’s regarding
ment deny recovery firm
the court Sutin fees, and the order
attorney’s to dissolve charging
permitting a lien.
(B) would affirm and reverse part I accounting the trial court’s between and, remand, Campbells on
Katz modify
would order the court I have
accounting provided as herein. I would reverse the trial court’s order
(C) and, punitive damages
granting special remand, would order that the court this hearing which
duct a is consistent
opinion. agree I
(D) Finally, position majority Campbell reinstating Sam
defendant, “cross-ap- disposing of the Katz
peal” and in its decision on costs. AITKEN,
Howard Dean
Plaintiff-Appellant, STARR, Nancy Starr, Public Service
Carl Mexico,
Company New Armando Gi- Giannini,
annini, M. Armand J. Gi- Lois
annini, Com- d/b/a Mariano Investment Rosemary
pany, Frank McCormick
McCormick, Defendants-Appellees.
No. 5752. New Mexico.
March 11, 1983. April
Certiorari Denied Hollander, Freedman, Nancy
David A. P.A., Freedman, Daniels, Boyd Albuquer- & plaintiff-appellant. que, *2 599 stated, Larrabee, Mowery, appellee Charles B. an concisely may, W. Mark without Dickason, Sloan, Robb, P.A., Rodey, cross-appeal, Akin obtain of taking & review Albuquerque, defendants-appellees for purpose enabling for the of such errors Starrs and McCormicks. affirm, court to notwith- appellate the errors committed the standing against Keleher, F. Thomas E. David- Margaret for appellant, or to remand the cause son, McLeod, P.A., Albuquerque, Keleher & new trial. defendant-appellee for PNM. Lines, Younger In Van Ortiz, Frederick Charles G. Bеrry, Patricia Mar- 320, (1964), the N.M. P.2d 438 under P.A., & Berry, chiondo for Albuquerque, rule, predecessor which was almost identi- defendants-appellees Gianninis. cal, rule Supreme explained the our OPINION as follows: 17(2) permits rulings Rule review ad- HENDLEY, Judge. appellee verse to which need be brought Plaintiff a personal injury action is appeal sidered the event the to damages injuries recover for he received merit, found to have but because of came when he into contact an electri- with is which it contended the case should cal There line. were of defend- groups four nevertheless affirmed. To obtain ants: Public Service New Company of Mex- 17(2) Rule review under no notice (PNM), ico the Starrs and McCormicks required, merely but the cross-appeal (present owners of the the Gian- property), brief making point appellee’s of a in the ninis owners of (past the property), argu- together of the claimed error (owners plaintiff Chavezes of the trailer (Emphasis added.) ment thereon. when injured). was on The trial court granted motions for summary judgment PNM does not the re- Accordingly, meet McCormicks, Gianninis, the and of the quirement of the rule. The Clerk and the Chavezes. The court trial also Court of directed to strike granted PNM a partial summary brief from record. pertaining plaintiff’s claim Review Standard which relied on the doctrine of strict liabili- Brock, 789, Goodman v. ty. appealed Plaintiff Chavezes (1972), that the burden is on states cross-appeal. filed a Plaintiff settled with show an genuine defendants to absence of a appeal the Chavezes. Plaintiff did not they issue of or that are entitled fact partial summary judgment granted to for judgment as a matter of law summary PNM. The issue on appeal relates some reason. After defendants have other summary judgments granted which were entitlement, fаcie prima showing made a McCormicks and Gian- plaintiff there burden shifts to show ninis. genuine are issues of fact and defendants reaching Before merits as a are not entitled to appeal, a motion was prior filed submis plain- The inferences matter of law. which sion strike PNM’s “Answer Brief.” mat- tiff to have drаwn from all is entitled in support ap PNM’s brief is of plaintiff’s before ters and considered properly peal the trial court as to be reversed —that trial be reasonable. We review court must and McCormicks the Gian depositions of record the affidavits appeal ninis. PNM did not file a noticе light foregoing. cross-appeal. 3(b), N.M.R.Civ.App. Facts S.A.1978, states: 21, 1979, August against appellee. Prior to Gianninis
(b) Review of error Home Paradise Acres Mobile against If errors have been an owned the committed trailer they date sold the appellee pre- and the same have been Pаrk. On that and the McCormicks. presented by points park served review and to the Starrs height that the March, Testimony shows purchased In accident. Chavezes month, somewhere between of the lines was In same 70-ft. mobile home. top from the trailer. inches to feet in the Acres up the home was set Paradise from Aitken’s not hidden lines were were Mobile Home Park. As the Gianninis view. home, Starr, a relative of the Nancy Gianninis, who were instructed the men approximately December at On *3 to moving place the trailer for the Chavezes when the injured Aitken was p.m., 4:00 27. Space the in No. Parallel to the trailer came into contact carrying antenna he was boundary the Acres Mo- south Paradise 7,200 volt electrical distribution with the wires, high voltage bile Home Park owned re- had been Ryan line. Aitken and Gene PNM, by and maintained were stretched skirting the from moving the antennas It the poles. appears between wooden that in for a preparation mobile home Chavezes’ parked trailer was in such to a manner as from had been evicted move. The Chavezes be partially underneath electrical lines the Ryan had park. Aitken and trailer PNM’s partially within easement. about 10:00 a.m. stаrted work at Starr,
Nancy upon becoming one over power knew the lines were Aitken park, owners of the tried regular recognized to make that one of the trailer. He end inspections park. had She walked He had noticed them they dangerous. were gone to along the south side оf the once or He had also property previous on occasions. morning deposition twice. Mrs. Starr testified her to tell in that end of the trailer that time, and, Ryan that she did at said he something not believe the Chavezes’ mo- that having stay bile was in note about to home located such manner made mental attempted to power away that it was lines. from the lines. He under the She lines, them neverthe- avoid but struck thought power that the lines were “like danger was of elec- less. He aware of the yard.” her Mrs. had noticed Starr [Chavez’] around power trical lines. He had worked that pоwer running some of the lines were He lines as a construction worker. realized respon- trees had assumed the through voltage. probably high that the lines were to sibility inspect in a “tree man” calling see they topped. trees to if needed deposition that he was He testified in top She then сalled PNM to the trees. The horizontally carrying antenna Space also for a Starrs had lived in short ground when he looked and was distracted time. going trip he down to make sure was not pipes over the vent in the roof of the trail- moving park, After into the the Chavezes er, when he shocked. Therе was other was one, put approxi- up three C.B. antennas — roof, Aitken, on the testimony that while 40 feet side mately high on east vertically with holding was the antenna trailer, is the in this suit. one involved holding Ryan of it over his head with most antenna, put up When Mr. Chavez he that ground; end Aitken other on power no enсountered difficulties they at to let because Ryan go hollered injury, lines. Prior to the date of plaintiff’s lines; power getting were too close to power antenna and the lines had never not, and let and Aitken did Ryan go come into contact with each other. the antenna fell into the wires. The antenna involved in the accident run- poles were lines There two on weighed pounds approxi- 40 to 60 and was line was ning by the trailer. bottom high. had mately 46 48 feet It three 7,200 top line was a neutral line and top radial arms at the which were approxi- line. volt distribution mately length. 12 inches in About feеt top from the were 3 or 4 Gianninis of the antenna approximately radial arms that were to 12 length. feet in (1965), state: and 353 Existing at conflicting There was as Conditions Dangerous evidence § height at Transfers Possession lines the time of the Time Vendor PNM’s Except stated in a vendor of other grounds, § Livingston v. Begay, 98 N.M. subjеct land is not liability physical harm caused his vendee or others while Under a vendor of § land is not upon the land after the vendee has taken subject liability to his vendee or others possession condition, by any dangerous dangerous caused condition which ex artificial, or whether natural which еxist- isted when possession the vendee took un ed at the pos- time that the vendee took exception less the takes effect. session. exception That comes into effect if the Dangerous 353. Undisclosed Condi- or vendor conceals fails to disclose a condi tions Known to Vendor tion which involves an unreasonable risk to (1) A vendor land who conceals fails land, persons if: the vendee does not to disclose to his any vendee know, know, or have reason to of the condi artificial, whether natural or which in- involved, tion or risk and the vendor does volves persons unreasonable risk to on the know and has reason to believe the vendee
land, subject is to liability to the vendee will not discover the condition or risk in upon and others the land with the con- volved. sent of the vendee or subvendee for .his Viewing depositions pursuant to the physical harm by caused the condition rule, Goodman, supra, the vendees knew after the possession, vendee has taken if power prior lines existed to the (a) the vendee does or not know have injury plaintiff. They were obvious. reason to know or condition the The in does not take exception stated 353 § invоlved,
risk and effect. (b) the vendor knows or has reason to grant- Summary properly was condition, know and realizes or toed the Gianninis. should involved, realize the risk and has and McCormicks reason to believe that the will vendee not Defendants Starrs and McCormicks discover the condition or realizе the risk. licensee, tend that Aitken was a not an (2) If the vendor actively conceals the Plaintiff, invitee as the trial court found. liability stated in Subsec- citing any argues without authority, (1) tion continues until the vendee dis- reply brief that this Court should not allow it has covers and reasonable opportunity this issue to be presented. argument His to take effective precautions against it. that, basically cross-appeal, minus a defend- Otherwise the liability continues un- ants should not allowed raise the til the vendee has had oppor- reasonable issue. tunity to discover condition and to precautions. tаke such This is not bound by grounds purportedly used the trial court as the (a) Comment 352 part: states in § basis granting summary judg- for The required vendee is to make his own Corporation, ment. v. Nissen 84 Garrett inspection premises, and the ven- 16, (1972). N.M. can 1359 We responsible dor is not to him for their independently decide whether Aitken was а condition, existing defective at the time licensee or invitee and whether under the of transfer. Still less is he to any liable circumstances defendants were entitled to person third who may upon come summary judgment. land, though even such entry is in the right of the vendee. The and “invitee” definition “licensee”
Tо this an exception rule has developed adopted in New Mexico courts is found in as to undisclosed dangerous conditions 330 and vendor, known as to which see (1965), respectively. 332 Mozert v. See § 353. 396, (1966). 364 Noeding, N.M. P.2d Those sections read: Livingston, v. Begay See 99 N.M.
P.2d 434 (Ct.App.1981), reversed Defined Licensee § pеrson
A licensee is a as a mere social privileged who is or whether he comes pose enter or remain on only by land virtue of the tenant. licensee of guest or other possessor’s consent. (k) the facts (g) and Under comments 332. Invitee Defined invitee case, was a business of this Aitken (1) An public invitee is either a invitee or to the and McCormicks. a business visitor. invitee, the Starrs As a business (2) public A invitee person is a who is duty plaintiff. owed a McCormicks invited to enter or remain on land as a 13.10, N.M.S.A.1978 13.9 and U.J.I.Civ. public member of the purpose for a duty (1980 Repl.Pamph.). Whether which the land is held open public. PNM and the Starrs performed by was (3)' A business visitor is a person who is plaintiff presents question McCormicks to invited to enter or remain on for a land finder. by the fact of fact to be determined purpose directly indirectly connected Furr's, Inc., 82 N.M. O’Neil v. See dealings possessor business Waxler, (Ct.App.1971); Proctor P.2d 495 of the land. P.2d 644 (g) (k) Comments 332 make it as to granting quite plaintiff clear that in the case present improper. was and McCormicks was a business visitor. Reversed and remanded. g. Visits incidental to business rela- possessor persons. tions of and third It IT IS SO ORDERED. necessary that the visitor shall him- *5 self upon purposes land for the of DONNELLY, J., сoncurs. possessor’s may business. The visit BIVINS, J., specially concurs. be for the convenience or arise out of the necessities of others who are themselves BIVINS, Judge (specially concurring). upon purpose. the land for such a Thus summary I concur in the affirmance of calls go pay thosе who to a hotel to social in favor the Gianninis for upon guests railway or to a station to reasons stated. I also concur in the reversal farewell, passengers meet or bid them are of in favor of the visitors, business since it is for different McCormicks but hotelkeeper railway business of reasоns. such guest passengers afford the parties presented this matter too, conveniences. a child taken a So respect to trial court and to this Court with shop mother or nurse to a is a business in- visitor; legal duties as between landowners and irrespective and this is true of holding summary vitees or licensees. In it necessary whether for the customer judgment in favor of the and McCor- to take the her in child with order visit opinion legal refers to shop. improper, micks of a gratuitous house or of an office in an office lessor of án who retains the control of the k. A person may be a business visitоr [******] lessor of land licensee of the lessee. apartment although an he is halls, apartment building, merely Thus, stair- a citing N.M.U.J.I.Civ. 13.9 and tions deal with the duties owed A.1978 business invitee danger. premises (1980 Repl.Pamp.). Those instruc- plaintiff by or a known or discoverable arising duty from a condition those landowner 13.10, defendants, N.M.S. tо a understanding of the uncon- my Based ways, approaches apart- and other to the McCormicks, facts, office, troverted ment or such parts holds rented park, as owners of a home premises mobile open any person whom though Even admit, space lessee 27 to the Chavezes. may irrespective choose to notice of eviction at the of whether the visit of such a latter had received person process in the pur- for his own or the lessee’s business time of the accident and were dismantling the antennae and trailer skirts P.2d occurred, when the relationship accident NEUMANN, Robert H. of landlord-tenant still existed between the Plaintiff-Appellant, Chavezes, Starrs and McCormicks and if not v. law, as a matter of then as one of fact. HORNER, INC., Employer, A.S. Thus, we are concerned here with those Companies, Insurer, Western Insurance principles of law which relate duty Defendants-Appellees. entering landlord to his tenant or to those the premises by the tenant’s invitation. No. 5934. of New Mexico.
(1965) provides: Conditions Existing When Lessor Trans- March 1983.
fers Possession: General Rule
Except 357-362, as stated in a lessor
of land is not liable his lessee or to
others on the for physical land harm
caused by any dangerous
whether artificial, natural or which exist-
ed when possession. the lessee took
To be summary judgment, entitled to
Starrs and must McCormicks have made
prima showing facie of no issue of fact as to
any exceptions listed Brock,
Goodman v. This having been done is
sufficient deny summary judg- reason to
ment. exhaustive,
While not following au- helpful:
thorities are
Hogsett
Hanna, 41
*6
(1936);
Gregorio, (10th Cir.1938); F.2d 948 Cot- Novak,
ter v.
57 N.M.
(1953); Hotels, Lommori v. Milner stated,
For reasons I would reverse in favor of the
Starrs and McCormicks.